This article summarises the most important developments both anticipated and already in effect in Austrian employment law in 2019.
Author: Birgit Vogt Majarek, Sarah Lurf
Firm: Schima Mayer Starlinger
Distinguishing between work and leisure time (Austrian Supreme Court 17.5.2018, 9 ObA 29/18g)
The concrete distinction between working time and leisure time is important both because of how remuneration is assessed (and the risk of underpayment especially where extra remuneration for overtime is payable) as well as maximum working time. Working time is determined by the employer, whereas leisure time is not. Sometimes it can be difficult to assess whether the degree of the employer’s influence on leisure time exceeds a specific critical level and the leisure time must therefore be (re)qualified as working time (with the consequences described). In a recent decision concerning time for changing clothes (which is usually considered leisure time), the Austrian Supreme Court ruled that the guidelines of the employer (a hospital) meant this time should be qualified as working time. The employees were required to wear work clothes, they were only allowed to change their clothes at the workplace and the employer cleaned the clothes and set certain places where the employees could pick up clean clothes. This high level of influence over the employee’s leisure time led to this changing time being requalified as working time. Therefore, employers who impose a very high level of organisational restrictions on employees and/or determine the whereabouts of their employees in their leisure time now have a higher risk of that time being considered working time as a result of this recent court decision.
No interruption of time off in lieu by sick leave (OGH 27.2.2018, 9 ObA 10/18p)
Illnesses that entitle the employee to sick leave do not interrupt time off in lieu to compensate for overtime according to an opinion in legal literature. The Supreme Court shared this opinion in a recent decision.
Electronic recording of working time in court proceedings (Austrian Administrative Court 23.11.2017, Ra 2017/11/0243; Austrian Administrative Court 22.2.2018, Ra 2017/11/0066)
For employees who clock in and out, operating the time stamp clock is generally the first and the last individual step of the working day and therefore determines the length of working time according to the Austrian Administrative Court. According to the Court, witness testimony does not constitute sufficient proof to contradict an electronically and automatically processed recording of working time. The probative force of such records can only be questioned by a second system monitoring working time that records actual working time (i.e. where operating the stamp clock does not accurately register the beginning of actual working time). Employers who use electronically and automatically processed systems (as mentioned above) that do not record actual working time may install a second control system. Otherwise the Austrian Administrative Court will rely on the data generated by the electronically and automatically processed system even if the employee or his or her colleagues would confirm that the actual time worked was different.
Transparency of lump-sum fee (Austrian Supreme Court 30.01.2018, 9 ObA 131/17f)
Flat-rate overtime allowances (Überstundenpauschalen) basically cover all overtime worked (including where higher rates are applicable for overtime). In a recent decision the Supreme Court has clarified that if less overtime was performed than the flat-rate overtime allowance would cover, the employer is not permitted to credit the remaining amount on other work that attracts a higher rate (e.g. for work performed by the employee on public holidays or for standby time).
Amendments to the Austrian Act against Unfair Competition relating to ‘business secrets’
As a result of Directive 2016/943/EU, the Austrian Act against Unfair Competition was amended with effect from 29 January 2019, so that it now contains a concrete definition of the term ‘business secret’. Before this amendment ‘business secrets’ were not legally defined in Austria, even though they were often the subject of court disputes. It is expected that the new definition of the term will make it harder to take action against employees who disclose sensitive information (that they became aware of during their employment), since the requirements for pursuing a claim against an employee on this ground are now stricter: it is crucial to establish whether the employer sufficiently protected the ‘business information’ since otherwise no general protection for this information exists.
Legislative changes anticipating a possible ‘No Deal’ Brexit
The Austrian government drafted an act at the end of January 2019 (Brexitbegleitgesetz) to ensure that citizens of the United Kingdom (including Northern Ireland), who currently live and work in Austria can still live and work in Austria for at least the six months following Brexit, even in the event of a No Deal Brexit. Further, affected individuals will be granted easier access to the ‘Rot-Weiß-Rot‘ Card, which allows third-country nationals to live and work in Austria for a limited period of time (the permission can be extended upon request). The act shall enter into force at the time the United Kingdom (including Northern Ireland) withdrawal from the EU becomes effective in the event of a No Deal Brexit.
Religious discrimination in connection with Good Friday (European Court of Justice C-193/17)
According to Austrian law, Good Friday is a public holiday for certain churches and consequently for members of these churches. According to a recent European Court of Justice decision (dated 22 January 2019), granting paid public holiday on Good Friday only to employees who are members of certain churches (which is mentioned in the Austrian Rest Periods Act) constitutes discrimination on the grounds of religion and is therefore prohibited under EU law.
In the future and provided that the state does not amend the relevant legislation, employers will be required to grant a paid public holiday on Good Friday not only to all members of the specific churches but also to any other employees (who are members of other churches) who insist on having a (paid) public holiday on Good Friday. However, despite this European Court of Justice decision, employees are not entitled to compensation for past Good Fridays (if they did not claim a day off at the time). It is anticipated that the social partners will bargain further on a possible solution or compromise and that the government will amend the relevant legislative provision to comply with the European Court of Justice decision.